UNDRIP is the law in British Columbia today and, we expect, tomorrow as well

On December 5, 2025, the British Columbia Court of Appeal (BCCA) made its decision in Gitxaała v. British Columbia, 2025 BCCA 430 (Gitxaała), ruling that the Declaration on the Rights of Indigenous Peoples Act (DRIPA) incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the positive law of British Columbia with immediate legal effect, creating legally enforceable obligations on the Province of British Columbia.

This decision signals a substantive shift in how the Province must consider UNDRIP throughout the statutory interpretation and application process as well as in discharging the duty to consult.

UNDRIP, DRIPA and UNDRIPA

UNDRIP is a United Nations declaration that sets out minimum standards for the survival, dignity and well-being of Indigenous Peoples, including rights tied to lands, territories, resources, culture and self-determination. While initially opposed, Canada fully endorsed UNDRIP in 2016. Because UNDRIP is an international instrument, there must be domestic legislation that enables its application for it to have specific legal effect.

British Columbia was the first jurisdiction to enact legislation incorporating UNDRIP into provincial law in 2019 through DRIPA. The purposes of DRIPA are to:

• Affirm the application of UNDRIP to the laws of British Columbia
• Contribute to the implementation of UNDRIP
• Support the affirmation of, and develop relationships with, Indigenous governing bodies

Further, section 3 of DRIPA sets out that “[i]n consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with [UNDRIP].”

Additionally, DRIPA requires the Province to prepare an action plan for how UNDRIP is to be implemented, and sections 6 and 7 of DRIPA provide the opportunity for Indigenous governing bodies to enter into decision-making agreements, including on the basis of consent.

In 2021, Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA). In substance, UNDRIPA is very similar to DRIPA, with the exception of the DRIPA provisions that contemplate decision-making agreements.

Supreme Court of British Columbia decision

In 2021 and 2022, Gitxaała Nation and Ehattesaht First Nation brought challenges to the operation of the mineral tenure system, asserting that the “free entry” claim staking system under the Mineral Tenure Act was both a breach of the Province’s obligations under section 35 of the Constitution Act, 1982 as well as those imposed by DRIPA.

In 2023, the Supreme Court of British Columbia (BCSC) determined that the Crown’s duty to consult with Indigenous Peoples was triggered and required that the Province amend the mineral tenure system to become consistent with the duty to consult.

However, with respect to DRIPA obligations, the BCSC held that DRIPA does not implement UNDRIP into provincial law nor does it create legally enforceable obligations on the Province to implement UNDRIP. Both First Nations appealed the BCSC decision as it relates to DRIPA’s application and the resulting obligations on the Province.

The Court of Appeal’s reasoning

The majority of the BCCA in Gitxaała overturned the BCSC judge’s decision and held that DRIPA does implement the substance of UNDRIP into domestic law and it does create legally enforceable rights where the Province fails in its implementation.

The BCCA did a thorough analysis of the text of DRIPA as well as DRIPA-related legislative amendments and considered the broader contextual analysis at the time of enacting DRIPA to come to its conclusions:

1. Conformity

Writing for the majority, the Honourable Justice Dickson determined that section 8.1(3) of the Interpretation Act, which requires that enactments “must be construed as being consistent with” UNDRIP, imposes a rebuttable presumption of consistency between British Columbia statutes and UNDRIP. This means that there is an obligation on all Provincial decision-makers to interpret BC legislation in a manner that is most likely to be consistent with the relevant articles of UNDRIP.

The Interpretation Act reinforces and makes explicit the common law presumption of conformity which requires that domestic laws be interpreted in accordance with international law – in this case, UNDRIP. Importantly, the common law presumption applies even where there is a lack of domestic enabling legislation, such as DRIPA or UNDRIPA.

The common law presumption of conformity has two aspects:

• The Legislature is presumed to act in compliance with Canada’s international treaty obligations
• The Legislature is presumed to comply with the values and principles of custom and conventional law

In its analysis, the BCCA set out two key considerations for conformity which relate to actions of both the Provincial and Federal Governments.

With respect to the Federal Government, the BCCA highlighted consideration from the Supreme Court of Canada acknowledging that, while UNDRIP itself is not a treaty, Canada recognized it as a “universal human rights instrument with application in Canadian law” under UNDRIPA. This recognition ultimately demonstrates an acknowledgement by Canada of its international obligations and solemn commitments to UNDRIP. In turn, this acknowledgement further reinforces the presumption of conformity.

With respect to the Province, the BCCA concluded that the purpose statement contained in section 2(3) of DRIPA serves to incorporate UNDRIP into British Columbia laws, specifically in the interpretation of DRIPA’s substantive provisions.

Drawing on the analysis of the SCC and the explicit language in section 8.1(3) of the Interpretation Act, the BCCA concluded that:

• UNDRIP applies as a source of interpretation and the interpretative lens is conformity
• Conformity is only rebuttable where the Legislature clearly expresses a contrary intent in an enactment

2. Application of UNDRIP Articles to British Columbia Laws

The BCCA in Gitxaała determined that the application of UNDRIP is a justiciable issue (i.e. that the courts may assess whether the Province has met its obligations pursuant to DRIPA).

In order to determine whether legislation is consistent with UNDRIP and whether conformity is required, some analysis may be necessary to first determine which characteristics the relevant UNDRIP articles possesses, including:

• Binding rights and obligations (specific legal entitlements and duties)
• General principles (guiding truths or values)
• Minimum standards (levels of quality or measurements)
• Aspirations (goals)

Where the relevant article of UNDRIP expresses a binding international right, obligation or general principle, then legislation should clearly conform. However, where an internationally recognized minimum standard or an aspiration is expressed, it may be sufficient for there to be general harmony between the enactment and UNDRIP.

3. Legal onus on the Province

Legislation

DRIPA imposes a positive obligation on the Province – in consultation and cooperation with Indigenous peoples – to take all measures necessary to ensure that BC laws conform with, at a minimum, the binding international rights, obligations and principles aggregated in UNDRIP.

To the extent there is an inconsistency between a British Columbia law and one or more provisions of UNDRIP that triggers the Crown’s positive obligations.

There are several ways in which a disputed question in relation to section 3 of DRIPA may come before the court, including:

• Whether there is an inconsistency between a British Columbia law and UNDRIP
• Whether the type of inconsistency in issue must be addressed by the Crown taking measures
• What measures should be taken
• The adequacy of a consultation process

The Common Law

Additionally, because DRIPA includes an affirmation of UNDRIP as its purpose under section 2(a), this amounts to a binding promise that the Crown will act as though the existing legal rights, obligations, minimum standards and goals expressed in UNDRIP apply to British Columbia laws, including the common law.

By enacting this provision, the Legislature engaged the honour of the Crown, of which a key aspect is the presumption that the Crown will fulfill its promises.

Because of section 2(a) of DRIPA, the Court stated that UNDRIP can and should inform the interpretation of the crown’s common law duty to consult, albeit incrementally. Interpreted through the existing Crown obligations under section 35 of the Constitution Act, 1982, including the common law duty to consult and possibly accommodate when it contemplates a decision that may impact Indigenous peoples, the Court’s findings regarding conformity may impart additional requirements that the Crown contemplate the specific articles of UNDRIP that may be relevant in each given decision.

Functionally, this additional consideration for UNDRIP could be layered into the Crown’s consultation activities. However, it is not clear what thresholds would be in play under such a framework for the Crown to discharge its duty to consult in each instance between the respective section 35 duties in play and those flowing from UNDRIP.

Political response to the decision

In the days following the decision, Premier David Eby made public statements indicating that the Province may pursue amendments to DRIPA – presumably to narrow the scope of the Province’s commitments to enforce UNDRIP within British Columbia laws.

While DRIPA is Provincial legislation that may be amended or repealed, Premier Eby’s comments give rise to a number of considerations regarding the process to do so and what further legal questions may be raised.

What is the Province’s obligation to consult and cooperate with Indigenous Peoples?

Section 3 of DRIPA states that “in consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”

The BCCA interpreted this as a recognition that law-making powers rests with the Legislature and determined that consultation and cooperation with Indigenous peoples is an obligatory element of this exercise.

Guidance for the requirements of consulting and cooperating have been provided by the Declaration Act Secretariat under the “Interim Approach to Implement the Requirements of Section 3 of the Declaration on the Rights of Indigenous Peoples Act,” which establishes the following process for developing provincial laws, policies and practices with Indigenous Peoples:

1. Initiate policy exploration and plan engagement – At this stage, the Crown is to begin early, distinctions-based engagement with Indigenous Peoples to identify issues and impacts of proposed policies or legislation
2. Request for decision – Following that, the Crown prepares decision documents that show how the proposal aligns with UNDRIP and detail consultation efforts
3. Request for legislation – The Crown then develops legislative proposals incorporating Indigenous feedback and suggested amendments
4. Legislative drafting – The Legislature drafts provisions that reflect Indigenous input and ensure legal consistency with UNDRIP
5. Introduction of bill – Finally, the Crown continues engagement throughout the legislative process to maintain alignment and responsiveness

The Interim Approach is rooted in good faith consultation and cooperation, meaning Indigenous Peoples must be actively involved in shaping laws rather than simply informed and it emphasizes collaboration and transparency to support shared decision-making and co-development of legislation in a manner that is consistent with UNDRIP.

The Interim Approach already recognizes that an iterative process in the development and amendment of legislation is required under DRIPA. Moreover, Article 19 of UNDRIP also requires that the Province consult and cooperate in good faith with Indigenous Peoples in order to obtain their free, prior and informed consent before enacting or amending legislation that may impact them.

We now know from Gitxaała that UNDRIP is a source of positive law in British Columbia, and laws must conform to those articles which express relevant, binding international obligations. Therefore, it follows that any proposed amendments to DRIPA as suggested by Premier Eby must involve consultation and cooperation with Indigenous Peoples and at minimum, align with the Interim Approach.

How has UNDRIP altered the Crown’s duty to consult?

Gitxaała builds on the emerging shift in Canadian jurisprudence which increasingly uses UNDRIP to inform the Crown’s duty to consult obligations to Indigenous Peoples.

The recent Federal court case in Kebaowek First Nation v. Canadian Nuclear Laboratories (“Kebaowek”) made it clear that UNDRIP and the principles of free, prior and informed consent must be integrated into the consultation process. Additionally, the Superior Court of Quebec in R v. Montour substantially modified the existing test for infringement of Section 35 rights set out in the seminal R v. Van der Peet. In the Court’s opinion, Canada’s support for UNDRIP and the adoption of UNDRIPA means the old infringement test, which focused on “striking a balance” between traditional exercises of Section 35 rights and Crown sovereignty, must be updated to reflect the modern-day practices of Section 35 rights as recognized under the relevant Indigenous groups’ own legal systems. This interpretation, the Court noted, aligns with UNDRIP which calls for the due recognition of Indigenous legal systems.

Based on these recent developments, we can expect the Supreme Court of Canada will weigh in on how UNDRIP impacts the common law duty to consult as more cases make their way through the courts. As it stands, Kebaowek was already appealed by Canadian Nuclear Laboratories, cross-appealed by Kebaowek First Nation, and heard by the Federal Court of Appeal in October 2025.

Is UNDRIP quasi-constitutional?

The Canadian courts have shown that certain rights-based legislative regimes can have a “quasi-constitutional” status if they address subject matter that is of fundamental importance to Canadian society or its legal systems or if they further “constitutional principles or rights (including Charter rights).”

Examples include human rights acts, privacy and official languages legislation and statutory bills of rights such as the Canadian Bill of Rights and the Quebec Charter of Human Rights and Freedoms. However, the Courts have not gone so far as to articulate what makes legislation “quasi-constitutional.” A good indicator is where legislation contains a clause which invokes its supremacy above other legislation where a conflict exists – that is, that all legislation must be interpreted in accordance with such quasi-constitutional statues.

Provincial Considerations

Gitxaała acknowledges that UNDRIP itself has an essential human rights component. This is further established under UNDRIPA, which affirms UNDRIP as a “universal international human rights instrument with application in Canadian law.”

Gitxaała demonstrates that DRIPA’s section 3 requires consistency between British Columbia law and UNDRIP. In our view, this is similar in exercise to previous Court rulings that elevate certain rights-bearing legislation to “not quite constitutional but certainly more than ordinary.”

Gitxaała did not directly address the question of whether DRIPA could be seen as having quasi-Constitutional status; however, it is reasonable to assume that if the Province sought amendments to DRIPA that could be seen as adversely impacting the rights of Indigenous peoples that this question would be asked directly of the court.

Federal Considerations

In addition to DRIPA, the question of quasi-constitutionality could equally be asked of UNDRIPA. There has already been some interesting academic analysis regarding whether UNDRIPA may have already achieved this standard.

Further, Canada’s own messaging regarding its obligations pursuant to UNDRIPA could be seen to indicate a presumption of quasi–constitutionality. For example, Canada’s Minister of Indigenous Services recently said, with respect to amending the Indian Act to remove the second generation cut-off exclusion, that she has a “legal and constitutional obligation” to consult with the Chiefs.

It is settled law that that the duty to consult is not triggered by bringing into force or amending legislation alone; rather, the duty can only be trigged once the legislation is in force and there are actions or decisions being contemplated that could adversely impact Section 35 rights.

It would appear that any Constitutional imperative regarding the amendment of legislation must then be as a result of UNDRIPA which, as noted, substantially mirrors the text contained in DRIPA.

This raises the question: Has Canada already drawn the conclusion that its obligations under UNDRIPA have been elevated to a quasi-constitutional status? If so, what, if any, are the additional obligations on the Crown when seeking to amend UNDRIPA or fulfill its responsibilities set out thereunder? Would these same requirements apply equally to BC?

Key Takeaways

Gitxaała marks a major statement about how UNDRIP now operates within British Columbia law. UNDRIP is legally operative and DRIPA is both interpretive and enforceable.

This approach broadens UNDRIP’s role in statutory interpretation and opens a path for litigants to seek judicial declarations of inconsistency. The broader implications of Gitxaała will continue to unfold as the Crown grapples with reconciling its existing and proposed enactments with the binding obligations set out in UNDRIP.

Ultimately, Gitxaała further emphasizes the need for meaningful reconciliation between the Crown and Indigenous peoples for the benefit of all who reside in British Columbia.

MLT Aikins works collaboratively across sectors to advocate for the rights and interests of Indigenous Nations and communities. If your Nation has any questions about legal services, the MLT Aikins Indigenous practice group would be happy to assist.

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